On 26 November 2007, Tesco Lotus, a subsidiary of the British-based company, Tesco PLC, brought charges of criminal defamation against Jit Siratranont, a former MP and Vice Chair of the Thai Chamber of Commerce, who had criticised Tesco Lotus's policy of expansion in Thailand. This move concerned English PEN, which agrees with all international human rights watchdogs that the offence of criminal defamation is not compatible with the fundamental right to freedom of expression, as set out in Article 19 of the International Covenant on Civil and Political Rights, to which Thailand is a signatory. When Tesco Lotus brought further actions for civil defamation against two journalists, a group of leading authors called on Sir Terry Leahy, Chief Executive of Tesco PLC, to fulfil his company's stated commitment to human rights, and support free speech in Thailand. English PEN received this response. Our original letter is shown below. For more information, see this coverage in The Times; and The Guardian.

Lisa Appignanesi
President
English PEN
6-8 Amwell Street
London
EC1R 1UQ
 
 
Dear Ms Appignanesi
 
I appreciate the concerns that you and your fellow writers have raised about the actions being taken by our Tesco Lotus business in Thailand but I believe that you have not been given an accurate account of the highly damaging and misleading allegations made against us or the lengths we went to to deal with the matter before involving the courts.
 
It is of course very regrettable that we have had to take legal action but these were not one-off remarks that we suddenly decided to act upon. We faced a sustained campaign of deliberate misinformation going back over many months which was very clearly damaging to our business and misleading to our Thai customers and staff.
 
We tried time and time again to engage and use 'the force of argument' as you describe it but this did not stop the campaign against us continuing. Whilst we fully support freedom of speech wherever we operate in the world, that freedom must come with the responsibility of truthfulness and does not provide the right to defame a company for simply going about its business.
 
These cases are framed in a way appropriate under Thai law but I can assure you that what we want is simply an apology and a retraction of claims which were false, damaging and misleading. We are still hopeful that these apologies will be forthcoming and that the matters can be resolved by agreement, without the need to resort to the courts.
 
Yours sincerely
 
 
Sir Terry Leahy
Chief Executive
Tesco PLC

Below is the original letter sent by English PEN to Sir Terry Leahy on 28 April 2008.

Sir Terry Leahy

Chief Executive

Tesco Stores Ltd.

New Tesco House

Delamare Road

Cheshunt

Herts, EN8 9SL

28 April 2008

Dear Sir Terry,

Freedom of Speech

We are writing to express our concern over the recent libel actions served by Tesco Lotus in Thailand against three critics of the store's policy in that country - Jit Siratranont, Kamol Kamoltrakul and Nongnart Harnwilai. We understand that Tesco Lotus has been faced with considerable criticism in Thailand, and that there may be some errors of fact in aspects of this coverage. However, the scale of Tesco Lotus's response seems grossly disproportionate. To seek damages of £1.6m and £16.4m from Thai businesses and individuals, we believe, sends a deeply chilling message to others who seek, quite legitimately, to discuss Tesco's impact on their local economy. This is at odds with our understanding of international human rights law, which recognises the need for individuals and organisations to protect their rights and reputations - so long as any protective action is deemed necessary and proportionate. Damages claims of this magnitude do not appear to be necessary or proportionate.

However, these civil claims pale into insignificance beside the charge of criminal defamation - section 328 of the Thai penal code - which has been brought against Jit Siratranont. This charge carries a maximum two-year prison sentence. The Asian Human Rights Commission recommended the repeal of this archaic law in 2004, noting its failure to comply with Article 19 of the International Covenant on Civil and Political Rights, to which Thailand is a party. We note in your corporate responsibility policy that 'Tesco is committed to upholding basic Human Rights and supports in full the United Nations Universal Declaration of Human Rights.' However, international human rights bodies are agreed that the offence of criminal defamation does not comply with basic standards of human rights.

The European Court of Human Rights has stressed that sanctions for defamation must always be proportionate to the gravity of the defamatory remarks in question. The Court has consistently held that imprisonment is a disproportionate response to defamation. Meanwhile, the UN Special Rapporteur on Freedom of Expression, appointed by the UN Human Rights Council, and the other international mandates for promoting freedom of expression - the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression - have repeatedly called on states to repeal their criminal defamation laws.

As writers and members of the writers' association, English PEN, we greatly value the tradition of free speech in Britain, and we would like to think that a leading international business like yours would be also concerned with exporting these values alongside your groceries. A strong democracy is one in which a diversity of voices are allowed to flourish, and we think Tesco, in line with your commitment to 'treat people as we like to be treated', could play an important role here.

In 2007, International PEN monitored the cases of more than one thousand writers who were persecuted because of their writing. Many of these writers were targeted as a result of their outspoken criticism of governments and corporations. At English PEN, we are hampered in our support for such writers of conscience whenever governments and corporations in the west endorse repressive laws such as criminal defamation.

In conclusion, we urge you to drop all actions in Thailand, and to impress your critics with the force of argument, not the threat of imprisonment. You will thereby impress us with your commitment to basic human rights. Any other course of action would, we believe, be damaging to Tesco's brand in the UK and internationally and would be contrary to Tesco's stated policy.

We would be happy to discuss this difficult situation with you in greater detail.

Yours sincerely,

Lisa Appignanesi, President, English PEN

Mark Haddon

Joanne Harris

Jonathan Heawood, Director, English PEN

Nick Hornby

Anthony Lester

Marina Lewycka

Deborah Moggach